Roman Law

ROMAN LAW. Roman law is a duplex expression denoting the legal system of Rome throughout the whole range of its thousand years of development from the Duodecim Tabulae, or Twelve Tables, until the Imperatoris Iustiniani Institutions, or Code of Justinian, and the subsequent fall of the Eastern empire; and connoting, in addition to this primary meaning, the actual Code of Justinian itself.

Evolved by the decemvirate about 451-449 b.c., the Twelve Tables formed a code of rules to meet the exigencies of regulating the day-to-day affairs of ordinary citizens following the successful ascendancy of the plebs over the populus. Consisting of equal representation by patricians and plebeians alike, the decemvirs codified and published those parts of the old customary law essential for administration of justice in the reorganized condition of the civil law and government.

The extant fragments of the Twelve Tables scarcely justify Cicero’s eulogistic reference to their being almost the perfection of human wisdom. Indeed, the Tables were anything but a corpus juris of the law previous to the irruption of the Gauls, being merely short statements of points of law which, however, provided the substratum on which the whole future complex of Roman law was structured.

The nascency of the formulary system is perceptible in the recognition by the Tables of the important early forms of action, sacramentum, a protean procedure for the enforcement of practically every right, manus injectio, symbolizing self-help, judicis postulatio, a process for settling boundary disputes, and pignoris capio, dealing with the satisfaction of debt by hypothecation or pledge. (See Livy, iii. 31-37; Cic. De Leg. 11; Rep. ii. 37, 63; Gaius, Dig. X. 1; xlvii. 22; Reliquiae [1866]; H. J. S. Maine, Ancient Laws [1861]; L. Hunter, Introduction to Roman Law.)

Outlined in The Digest, i. 2, de origine iuris, etc., the germination and growth of Roman law as a system found its first written expression in the Twelve Tables, and owed its initial development to the exertions of private jurisconsults whose writings and views were not infrequently adopted by the praetors in their annual edicts.

The earlier law, or ius civile, had hardened into a rigid and rigorous formalism, and it was to this praetorian law, which, in the early empire was formulated in a perpetual edict, that the ius honorarium owed its softening application of principles of equity and natural justice. It was at this stage that legal rights emerged out of legal remedies, because the ius honorarium mainly operated as a rule regulating civil actions.

The Twelve Tables operated for over a thousand years down to the Theodosian Codex (a.d. 438), and the Corpus Iuris Civilis of Justinian, during which time the laws of Rome were never codified. (See T. Mommsen and P. M. Meyer, Theodosiani Libri XVI, 1904-1905.)

The Institutes of Justinian finally cast the laws of Rome into a shape convenient to the practitioner as well as the student of law. Even when the barbarians ruled the W, Roman law was the personal law for Romans, and, in the E, under Justinian. They were largely superseded by imperial constitutions and while obscured by Gr. commentaries, the principles of Roman law were to some extent restored by a restatement known as The Basilica in a.d. 887, and were revised by order of Constantine VII about a.d. 945. The Basilica does not contain the whole of the Justinian Code, but includes some materials not in the Code. It comprises the Institutes, the Digest or Pandect, Code, Novellae, and the Imperial Constitutions made after Justinian’s reign. (See Gibbon, Decline and Fall of the Roman Empire, ch. xliv.)

A recognition of the doctrines of the old system, which was swept away in the later days of the empire, is essential to an appreciation of Roman law as it applies to the NT background. The chief of the elementary doctrines of the ius civile were the peculiar principles determining the situation of the pater familias or the head of the family. The agnatic rule of descent, i.e., through males, regulated kinship in the fundamental social unit which was the patriarchal family, outside of which was the gens or class with which the family unit was linked by common ancestry. The law of the Twelve Tables recognized testamentary disposition, namely by will, as already in existence. Intestate succession by agnation was per capita, not per stirpes, all agnates of equal degree taking equally.

At the other end of the historical spectrum, it is noteworthy that the most important accretion to Roman law was the concept of lex naturae, borrowed from the Stoics, by which was meant the principle that the actions of men were to be guided by the same law which directed the universe. The ius gentium emerged from this, so that, with the ius naturae, these two agencies ameliorated and enlarged the ius civile, a process analogous to the modifying influence of equity on the common law of England centuries later, although, in fact, the development of common law owed little to Rom. influences, which, however, have permeated most other legal systems of the civilized world. (See J. Muirhead, Historical Introduction to Private Law of Rome [1886]; J. B. Moyle, Institutes of Justinian [1903]; R. W. Lee, The Elements of Roman Law [1952].)

It is appropriate at this point to comment on the ius gentium, or law of nations, administered by the praetors and applied to nations under Rom. dominion. The ius gentium was the common law for all men, the word ius expressing legal rights as well as rules of law. Roman jurists regarded the ius gentium as based on consent, because of its inherent reasonableness and appeal to the conscience of men. (See Westlake on International Law [1914].)

The supremacy of Rome in the affairs of Judea is marked by the rule of Herod who was confirmed by Augustus in the possession of the entire Maccabaean kingdom. His salutary exertions on behalf of the people were climaxed by reconstruction of their Temple, but personal blemishes of ambition and cruelty stamped Herod as a despot and a tyrant whose efforts failed to “Romanize” the Jews.

Interesting aspects of Roman law reflected in the NT include references to adoption in Paul’s epistles (Rom 8:15, 23; 9:4; Gal 4:5; Eph 1:5). In Roman law, adoption was a very ancient institution rooted in ancestor worship, the maintenance of the family sacra being such that an old man dying without issue was permitted to arrogate some citizen a pater familias and so make him a son. Similarly, another mode of adoption by which filii familias could be adopted was devised. The adoptatus was absorbed into the family where he was equated to a natural child.

“Heirs of God, and joint-heirs with Christ” (ASV) are referred to by Paul (Rom 8:17; Eph 3:6), and it is noteworthy that these references to the Rom. system draw upon the feature that the main function of the will was not the disposition of property, but the appointment of a successor, the heres, who was not simply an heir, but the actual representative of the deceased. Even where the heres or heredes were appointed heredes only to a half, their appointment would be construed as covering the whole estate.

The common law knows no concept such as that of the hereditas, an entity coming into being by the death of the de cuis (predecessor) and then merging into the personality of the heres or actual successor. Whether the ancestor and heres had one persona, or whether the hereditas was the ius, or legal situation, of the deceased, does not really affect the aptness of the Pauline allusion.

Under the Roman law of persons, all men were either free or slaves. A slave was legally both a thing and a person, and he could be freed by manumission, a process whereby the slave was touched with a wand (vindicta) by the plaintiff (adsertor liberatis) in the course of a fictitious lawsuit and thereupon became a freedman in contradistinction to his former condition of bondsman. A freedman owed his patron obsequium (complaisance).

Roman law, like any other legal system, could not and did not remain unaffected by social, cultural, political, and economic influences. However, Roman law was neither Orientalized nor Hellenized, but retained its essentially national character. Some institutions of later Roman law, e.g. family law and slavery, were influenced by Christian principles of humanity and benignity, thus enlarging the Rom. concept of equity as the realization of plain natural justice in accord with everyman’s conscience. Christianity did not greatly alter the framework of Roman law. This was accomplished by Justinian whose great codification will be discussed in some detail shortly.

The civil law and procedure against their historical setting having been outlined, some comment on interpretatio is appropriate. From the outset, the interpretation of the law and of the actions founded upon it were the responsibility of the college of pontiffs. About the 3rd cent. b.c. the administration of the law became secularized, and plebeians were admitted to the college. The early jurists were termed veteres who advised both clients and judges. Another class, referred to as advocates, undertook forensic argument. About 242 b.c. the praetor urbanus and the praetor peregrinus came into being as magistrates, who, at the commencement of their term issued edicts stating the procedural rules they intended to follow, hence the edictum perpetuum in contrast to edicts of an occasional nature. A body of precedent, or edictum tralaticium, was built up, any new matter being called edictum novum. The praetor was not necessarily a skilled lawyer, but would consult his considium, or body of expert advisors. He was also amenable to public and professional opinion.

The praetors enjoyed a limited sphere of power. Their office was elective. They were subject to consular intercessio, or veto. On the other hand, the two consuls, elected by the comitia centuriata, exercised unlimited imperium derived from the monarchy. In fact, in a time of grave crisis, either consul might appoint a dictator to exercise supreme authority for up to six months.

The aediles were magistrates of the Rom. people charged with the police of the city and control of the markets.

The censorship was a roll-taking and taxgathering office of great dignity. The censors (two in number) also administered governmental business. Later in their history, they determined the composition of the Senate, and exercised a general control over public morals.

Quaestors (two annually) were nominated by the consuls to assist them in fiscal matters.

Tribunes (up to ten) enjoyed enormous power. The tribunate was a plebeian office, the person of the tribune being sacrosanct. They had power of veto over the acts of other magistrates and could even hold the State to ransom in the furtherance of partisan interests.

Mention must be made of the responsa prudentium, or opinions of professional jurists, which by the time of Emperor Augustus were issued by the Emperor’s authority under seal. Such weight was attached to the responsa, or answers, of eminent jurists, that Gaius enumerated the responsa among the sources of written law.

As a result, the law had to be extracted from a mass of legal lit. which served as a foundation of Justinian’s Digest.

The Institutes of Justinian form the principal source of the knowledge of Roman law. Beginning with a definition borrowed from Ulpian, The First Book begins, “Iustitia est constans et perpetua voluntas ius suum cuique tribuens.”—“Justice is a set and constant purpose giving to everyone his due.” This is justice in the sense of a moral virtue, or attribute of human character, not a legal standard. According to Justinian, legal study comprised two branches: public law, dealing with the constitution of the State, and private law, concerned with individuals. The Institutes are preoccupied with private law, there being only a closing title on criminal law (ius publicum).

The ius privatum is subdivided into the ius naturale (natural precepts), ius gentium (precepts of universal law), and ius civile (civil law).

The law of nature is described as “the law which nature has taught all animals....This is the source of the union of male and female, which we call matrimony, as well as of the procreation and rearing of children.” The civil law is defined as the rules of law, “which each people makes for itself.” The universal law is defined as “the law which natural reason has prescribed for all mankind held in equal observance amongst all people.”

Justinian distinguishes between ius scriptum (written law) and ius non scriptum (unwritten law). The sources of the written law, according to Justinian, are lex plebiscitum, senatu consultum, magistratuum edicta, responsa prudentium, principum placita.

Repeating the language of Gaius, Justinian says, “The whole of our law relates either to persons, or to things or to actions.”

Summarizing, the Institutes deal with free men and slaves, persons of independent and dependent status, juristic persons, the modes of acquisition of property, gifts, servitudes, leases, real securities, possession, succession, wills, contractual obligation, sale, hire, partnership, pacts, agency, quasi-contract, theft, delicts, debt, assignments, the law of actions, the formulary procedure, summons, trial, execution, and interdicts.

The Institutes were published on November 21, a.d. 533, with statutory force, along with the Digest, from December 30 of that year. Justinian also fixed, at the same time, the course in legal education at five years.

From the Twelve Tables to the Institutes the Romans did not establish a systematic body of criminal law, the Rom. jurists being not so much interested in the distinction between the violation of public and private interests, as with iudica publica and private actiones poenales. The State did not concern itself with robbery (rapina), theft (furtum), property damage, and assault (iniuria), the procedure being by way of private suit. Certain crimes were, however, prosecuted by public organs in iudicia publica, viz. treason (perduellio), desertion to the enemy, certain types of murder (parricidium). Special criminal courts were later set up to deal with the more grave offenses against life and personal fame, adultery, and falsification of documents. Juries were introduced by Augustus, but they had no jurisdiction over Rom. citizens. The state of the delinquent’s will (dolus) was taken into account in criminal trials. Roman penology was concerned with the vindictive and deterrent aspects of penalties rather than the reformatory aspects.

What of the trial and death of Jesus? There is no dispute that the trial was before Pilate, and thus, at that stage, a Rom. trial. Jesus was brought before Pilate by the Jewish authorities. Pilate asked Him if He was King of the Jews to which Jesus replied, “Thou sayest it,” which was tantamount to a plea of guilt of revolt against the Rom. emperor and the king recognized by him. Such a confession would have been sufficient in Rom. law for conviction of the defendant. Against this view, the Jewish trial theory is historically and theologically more widespread, and the whole complex question is exhaustively discussed by Haim H. Cohen, Justice of the Supreme Court of Israel, in an article in Israel Law Review [1967], p. 332. (See Moyle, Imperatoris Iustiniani Institutiones [1903]; Lee, Elements of Roman Law [1952].)

What is the comparison between the common law of England with its adaptation to the United States of America and the law of the Romans? The method of both systems is casuistic. Generalizations and definitions are avoided. Both systems proceed from case to case in quest of a utilitarian set of rules, even at the price of some logical incoherence. There are noticeable differences, for example, in the notion of the family. The common law looks upon the family as a natural conception based upon marriage and consanguinity. The Romanist sees the family as a purely civil entity, into which, from antiquity, strangers could be admitted by adoption. Again, the sharp Rom. distinction between possession and ownership is unknown to the common law. We have already noted that the concept of hereditas had the connotation almost of a person. The heres as a universal successor finds but faint resemblance to the common law executor or administrator. The Romans had no general theory of contract, but a law of contracts. Delictal liability is closer to the idea of vengeance than our criminal and tortious liability. But in both systems a developing trend toward equitable principles is discernible. (See Buckland and McNair, Roman Law and Common Law [1936].)